State v. Finch

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,136

STATE OF KANSAS,
Appellant,
v.

PAUL R. FINCH,
Appellee.


SYLLABUS BY THE COURT

1.
Kansas courts accept appeals on questions reserved when the issues are matters of
statewide interest important to the correct and uniform administration of the criminal law
and the interpretation of statutes but will not consider such appeals when the resolution of
the question would not provide helpful precedent.

2.
Statutory interpretation and construction raise questions of law reviewable de
novo. The court's first task is to ascertain the legislature's intent through the statutory
language it employs, giving ordinary words their ordinary meaning. When a statute is
plain and unambiguous, the court must give effect to its express language, rather than
determine what the law should or should not be. The court will not speculate on the
legislative intent and will not read the statute to add something not readily found in it.

3.
An appellate court reviewing a district court's grant or denial of a defense motion
for judgment of acquittal examines the sufficiency of the evidence to support the
conviction. The proper standard is whether, after reviewing all of the evidence in the light

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most favorable to the State, the appellate court is convinced that a rational fact-finder
could have found the defendant guilty beyond a reasonable doubt.

4.
K.S.A. 2007 Supp. 8-1567(a)(2) prohibits operating or attempting to operate a
vehicle while the alcohol concentration of the driver's blood or breath, as measured
within 2 hours of operating, is .08 or more. It is a per se statute. The State need not prove
the actual alcohol concentration of the driver's blood or breath at the time of driving or at
the time of measurement. It also need not prove that alcohol actually impaired the
defendant's driving.

5.
The plain language of K.S.A. 2007 Supp. 8-1567(a)(2) is clear and unambiguous.
It neither requires nor prohibits the fact-finder's consideration of an Intoxilyzer 5000's
margin of error. Such a margin of error is merely one factor to be considered in arriving
at the verdict.

Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge. Opinion filed
January 7, 2011. Appeal sustained.

Nicole Romine, assistant district attorney, argued the cause, and Mark A. Simpson, assistant
district attorney, Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief
for appellant.

Janine A. Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellee.

The opinion of the court was delivered by


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BEIER, J.: This appeal by the State arises on a question reserved in a driving under
the influence (DUI) prosecution. The State challenges the district court judge's decision
to grant a motion for judgment of acquittal based on the margin of error for the
Intoxilyzer 5000 used to test defendant's blood-alcohol concentration.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Paul R. Finch was arrested for DUI, and his blood-alcohol
concentration was measured at .08 through the use of an Intoxilyzer 5000 within 2 hours
of his operating a vehicle. The State initially charged him in the alternative under K.S.A.
2007 Supp. 8-1567(a)(1), (a)(2), and (a)(3). Immediately before trial, the State informed
the court that it was basing its DUI case solely on subsection (a)(2), which reads: "No
person shall operate or attempt to operate any vehicle within this state while: . . . the
alcohol concentration in the person's blood or breath, as measured within two hours of the
time of operating or attempting to operate a vehicle, is .08 or more." See K.S.A. 2009
Supp. 8-1567(a)(2) (same language). At trial, a police officer testified that he conducted
two tests on the Intoxilyzer 5000 every 7 days or every 14 tests, whichever came first, to
ensure that it was properly calibrated. He further explained that the results from these
tests often varied. For example, on April 24, 2007, the first test returned a result of .080;
the second test returned a result .079. Two days before, the first test had returned a result
of .072; the second test returned a result of .073. The officer said the Intoxilyzer 5000
was calibrated so that tests returned readings from .070 to .089, with a temperature range
of 33.8 degrees Celsius to 34.2 degrees Celsius. If the results did not fall within this
range, the machine would abort the test and give an error message. The officer also
testified that a person with a test result of .08 was considered intoxicated under state law.

"Q. [DEFENSE COUNSEL:] And there is a margin of error in the Intoxilyzer 5000,
is there not?

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"A. [OFFICER:] I would not agree with that, no.

During further cross-examination by Finch's counsel, the officer was asked if the
Intoxilyzer 5000 was 100 percent accurate. This exchange followed:

"Q. Is there not a one percent margin of error on either side?
"A. Not that I am aware of, according to the statistics.
"Q. Not that you are aware?
"A. Not that I have been taught, no.
. . . .
"Q. You don't know whether there is a margin of error from the
manufacturer?
"A. I'm stating I was not taught that there was.
"Q. All right. Were you taught that there wasn't?
"A. That's correct. I was taught that the test you get is accurate.
"Q. With—I mean like an election . . . . for instance where you have a two or three
percentage point usual margin of error, you're saying that doesn't exist here?
"A. I would agree with that, yes.
"Q. I'm sorry?
"A. I believe that statement would be correct.
"Q. And do you have an explanation then as to why every trial that we pointed out
was different, between one test and another, a percentage point or two, like for instance
.079 to .080?
. . . .
"A. The simulator solution bottle is attached to the Intoxilyzer. The simulator
solution is heated, it has a heater in it. The top is not heated and the breath tube is not
heated. When a subject gives a test, that breath tube is heated to try and maintain a
constant temperature of the test, so with the simulator top not being heated and the tube
not being heated, that air that is pulled through that simulator comes in at room
temperature instead of what a person's temperature is, and therefore with that change it's
gonna actually change your test result minutely, and that's why the State has a range."


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Finch moved for judgment of acquittal after the State rested its case, arguing that
the varying test results obtained on the Intoxilyzer 5000 created reasonable doubt. The
district judge expressed concern about the officer's testimony, saying:

"Well, first, [the officer's] testimony to me seems inconsistent, and you can
explain it if you want, with his testimony that the . . . Kansas Department of Revenue
allows a variation between .073 and .087 in the known sample.
. . . .
"And the known sample is . . . what's used to compare the unknown sample, and
that's a .014, 14 one-hundredths variation. I don't understand how anything . . . below
.087 can be said to be .080 beyond a reasonable doubt, and so you can explain to me
how—I mean I think [the officer's] testimony is inconsistent when he says there is no
margin of error. Unfortunately, I'm also tainted by the fact I had a chemist testify in a trial
. . . that there is in fact that variation in the Intoxilyzer 5000."

The State responded, and then the judge and counsel further discussed the
Intoxilyzer 5000:

"[THE STATE]: . . . [The officer] testified that the known sample is, the tubes
aren't heated so that it can allow that tolerance, so that it's an accurate test, and that it's
different when a person gives a test because the breath is warmed up and what not, and I
think he did a good job of explaining that inconsistency between the known sample and
then an actual human test. He testified for several minutes over that.
"THE COURT: But they heat the known sample, it's got to be a certain
temperature.
"[THE STATE]: Right, but he said there [are] variances in the known sample that
can cause that variance, that's not present when they do the human sample, and he
testified that there is no margin of error, and I think because we have that testimony in
front of the jury there is enough to submit it to the jury for them to make a finding. They
can decide if it's—if it hasn't risen to the level of reasonable doubt, or not, beyond a
reasonable doubt or not, but I think that we've gotten past this point.

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"[DEFENSE COUNSEL]: I think he also testified that every solution tests
differently, so again when he was talking about the warm breath, every solution then is
going to be a little different, and when it's this close, how in the world can you get to
where we need to go.
"THE COURT: I don't think it makes sense, and frankly it's my belief that
anything under .087, you cannot say beyond a reasonable doubt that it is—
"[THE STATE]: Those facts may or may not be true, but they're not before this
jury and before the Court on this case.
"THE COURT: So we let them decide something that's on incorrect evidence that
we know is incorrect?
"[THE STATE]: Well, I think we have to submit the case on the evidence that's
been presented in this case, not evidence that's been presented. . . . in any other case ever.
We don't have any evidence in this case that that's inaccurate or that there is a margin of
error.
"THE COURT: Well, yeah, there is evidence, there is evidence—
"[THE STATE]: Not in this case.
"THE COURT:—there is evidence as the known sample—
"[DEFENSE COUNSEL]: Well, there is evidence that every time they tested, it
came out different when they're doing the tests back to back.
"THE COURT: Yeah, which is .02.
"[THE STATE]: Well, but [the officer] testified as to why that happens. He did
present that testimony as to why that happens with the known sample and not with the
human sample.
"[DEFENSE COUNSEL]: Well, because every solution tests differently, which
doesn't make a lot of sense.
"[THE STATE]: Every, every solution is different than any other solution.
"THE COURT: I know [the officer] is wrong. I cannot let that go to the jury
knowing it's wrong. I am going to grant the motion for directed verdict."

We transferred this appeal on a question reserved on our own initiative.


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DISCUSSION

Kansas courts accept appeals of questions reserved when the issues are '"matters
of statewide interest important to the correct and uniform administration of the criminal
law and the interpretation of statutes" but will not consider such appeals when
'"resolution of the question would not provide helpful precedent."'" In re C.P.W., 289
Kan. 448, 451, 213 P.3d 413 (2009) (quoting State v. Skolaut, 286 Kan. 219, 224, 182
P.3d 1231 [2008]).

This case concerns a matter of statewide interest important to the correct and
uniform prosecution of countless and often highly contentious DUI cases. Scientifically
valid measurement of blood-alcohol concentration is a frequent feature of such cases, and
margin of error in testing equipment a potentially fertile field of inquiry for the defense.
We thus have no hesitation in concluding that resolution of the issue presented in this
case will provide helpful precedent.

This appeal requires that we address questions both legal and factual. We must
explore the legal elements the statute requires the State to prove in any K.S.A. 8-1567
(a)(2) prosecution. Then we must examine the evidence presented by the State in this
case to decide whether, factually, it met the statutory proof requirements and should have
survived the defense motion for judgment of acquittal. Although the outcome on this
question in this appeal will not affect Finch, whose acquittal will stand, it promises to
guide participants in future cases.

Two standards of appellate review are relevant.

First, statutory interpretation and construction raise questions of law reviewable de
novo. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). The court's first task is to

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"ascertain the legislature's intent through the statutory language it employs, giving
ordinary words their ordinary meaning." State v. Stallings, 284 Kan. 741, 742, 163 P.3d
1232 (2007).

"When a statute is plain and unambiguous, we must give effect to its express
language, rather than determine what the law should or should not be. We will not
speculate on the legislative intent and will not read the statute to add something not
readily found in it. If the statute's language is clear, there is no need to resort to statutory
construction. [Citations omitted.]" Graham v. Dokter Trucking Group, 284 Kan. 547,
554, 161 P.3d 695 (2007).

Second, just as a district court must base its ruling regarding a defendant's motion
for judgment of acquittal on the sufficiency of the evidence, an appellate court reviewing
a district court's grant or denial of such a motion examines the sufficiency of the evidence
to support the conviction. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004).
"'[T]he [proper] standard . . . is whether, after reviewing all of the evidence, viewed in the
light most favorable to the prosecution, the appellate court is convinced that a rational
fact finder could have found the defendant guilty beyond a reasonable doubt.' [Citation
omitted.]" 278 Kan. at 479.

The parties' arguments also illuminate the legal and factual divide on the question
before us. Specifically, the outcome of this case depends upon the correct meaning and
appropriate application of the phrase "as measured" in K.S.A. 2007 Supp. 8-1567(a)(2).
As set forth above, the statute prohibits operating or attempting to operate a vehicle
"while" the alcohol concentration of the driver's blood or breath, "as measured within two
hours" of operating or attempting to operate a vehicle, is .08 or more.

The State argues that the district judge's ruling in this case depended upon an
improper legal conclusion that, to get to a jury, the State must prove beyond a reasonable

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doubt a defendant's actual blood- or breath-alcohol concentration within 2 hours of
driving, rather than merely a measurement of it within 2 hours of driving. See State v.
Fish, 228 Kan. 204, 207-10, 612 P.2d 180 (1980) ("operating" and, "driving" are
synonymous and used interchangeably). Given the judge's understanding of the
Intoxilyzer 5000 margin of error, he ruled that the State would have to prove a reading of
at least .087, rather than the statutory threshold of .08. At oral argument, counsel for the
State went further, arguing that no defendant should be permitted to mount a margin of
error defense to a charge under 8-1567(a)(2) once the State demonstrates that (1) the
Intoxilyzer was operating properly, (2) the Kansas Department of Health and
Environment testing protocol was followed, and (3) the test reading was .08 or more. The
State asserts that the historical categorization of 8-1567(a)(2) as a "per se" statute
prevents such a defense as a matter of law. It also argues that, factually, its evidence was
sufficient to make a prima facie case.

The defense argues that the district judge's ruling on the motion for directed
verdict depended entirely on his appropriate assessment that the particular evidence in
this case was factually insufficient, rather than any legal ruling regarding "as measured"
or the margin of error. In the view of the defense, the district judge took the case from the
jury because the State failed to meet its burden to come forward with evidence to support
a prima facie case submissible to a jury; the evidence demonstrated that the Intoxilyzer
5000 was unreliable when Finch underwent his test and, thus, the result could not support
his conviction as a matter of law, even under a per se statute.

The plain language of K.S.A. 2007 Supp. 8-1567(a)(2) is clear and unambiguous
and, at least in part, favors the State. The State is correct that the only elements in this
case were: (1) Finch operated/drove a vehicle; (2) while driving, Finch had an alcohol
concentration in his blood or breath of .08 or more, as measured within 2 hours of
operating/driving; and (3) the driving occurred on the date alleged in Douglas County,

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Kansas. See K.S.A. 2007 Supp. 8-1567(a)(2); PIK Crim. 3d 70.01-A. The statute does
not mention the concept of margin of error. It neither requires its calculation nor
prescribes a reduction in the Intoxilyzer test result based upon it.

As our Court of Appeals has previously recognized, a legislature certainly is
capable of stating that a margin of error must be considered as a matter of law when
drafting a driver's license revocation statute. See Ruble v. Kansas Dept. of Revenue, 26
Kan. App. 2d 1, 4-6, 973 P.2d 21 (1997) (discussing Nugent v. Iowa Dept. of Transp.,
390 N.W.2d 125, 128 [Iowa 1986], subsequent statutory amendment by Iowa legislature;
citing similar decisions in Wieseler v. Prins, 167 Ariz. 223, 225-26, 805 P.2d 1044 [Ct.
App. 1990], rev. denied March 5, 1991; Hrncir v. Commissioner of Public Safety, 370
N.W.2d 444, 445 [Minn. App. 1985]). The same is true when a legislature drafts a DUI
criminal statute. Our legislature did not do so in 8-1567(a)(2). And, as an appellate court,
we are not willing to write a margin of error into its otherwise clear statutory language.

That being said, we also are not willing to go as far as the State would lead us in
the opposite direction. The State overeggs the pudding when it discusses the historical
categorization of 8-1567(a)(2) as a "per se" statute. See City of Colby v. Cranston, 27
Kan. App. 2d 530, 536-37, 7 P.3d 300, rev. denied 269 Kan. 931 (2000) (actual alcohol
concentration need not be proved); State v. Hartman, 26 Kan. App. 2d 928, 931-32, 991
P.2d 911, rev. denied 269 Kan. 937 (2000) (not material whether defendant could safely
drive vehicle). The State need not prove a defendant's actual blood- or breath-alcohol
concentration at the time of the test or at the time of driving, and it need not prove
alcohol's actual adverse impact on a defendant's driving; but mere proof of an Intoxilyzer
reading of .08 or above within 2 hours of defendant's driving does not automatically
necessitate conviction. The inclusion of the "as measured" language in 8-1567(a)(2) since
the statute was amended to add it in 1990 does not inoculate the State's proof from
defense challenge. See Hartman, 26 Kan. App. 2d at 931.

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Indeed, the State's argument that a defendant should never be permitted to mount a
margin of error defense appears to arise out confusion between the concept of a "per se"
statute and the concept of a "prima facie" case. The State's introduction of evidence
supporting the statutory elements in a per se criminal statute does not endow the evidence
with infallibility. It is sufficient to support a conviction but not to guarantee it. It merely
establishes a prima facie case, one that may prevail "unless disproved or rebutted."
Blacks Law Dictionary 1228 (8th ed. 2004); see Hartman, 26 Kan. App. 2d at 932; see
also United States v. Madden, No. 99-3276, 2000 WL 966436, at *3-4 (10th Cir. 2000)
(unpublished opinion).

In short, proof of the elements of a per se criminal statute will get the State past a
motion for judgment of acquittal and on to a jury. It will not compel a conviction as a
matter of law. The defense may still attack the State's proof and attempt to discredit its
witnesses, their machines, and their methods during the State's case-in-chief or later. The
jury may finally agree that reasonable doubt prevents a conviction. It is the role of the
jury to determine the facts and to apply the law to those facts in reaching its decision. A
plea of not guilty places all issues in dispute, including even things most patently true.
However strong the State's case may be, the jury has the power to accept it, reject it, or
find it insufficiently persuasive. See State v. Brice, 276 Kan. 758, 770-71, 80 P.3d 1113
(2003) (quoting United States v. Mentz, 840 F.2d 315, 319-20 [6th Cir. 1988]). A
defendant in a prosecution under K.S.A. 8-1567(a)(2) may raise and argue margin of
error or other questions about the reliability or accuracy of his or her blood- or breath-
alcohol concentration "as measured," in the same way he or she can challenge whether
the test was conducted within 2 hours of operating or attempting to operate a vehicle. See
State v. Pendleton, 18 Kan. App. 2d 179, 185-86, 849 P.2d 143 (1993). Margin of error is
simply a factor among many possibilities for the fact-finder to consider. See State v.
Miller, No. 99,460, 2009 WL 1766150, at *1 (Kan. App. 2009) (unpublished opinion)

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(margin of error one fact for jury to consider, not dispositive for State, defendant); City of
Hutchinson v. Minor, No. 90,088, 2003 WL 22831740, at *2-4 (Kan. App. 2003)
(unpublished opinion) (same).

This is exactly the scenario that should have been permitted to play out to its
conclusion in this case.

At the conclusion of the prosecution's case-in-chief, when the evidence is viewed
in the light most favorable to it, the State had established a prima facie case. Evidence
established the elements of the offense under the per se statute, including the
measurement of Finch's blood- or breath-alcohol concentration was .08 or above within 2
hours of his operating a vehicle. We are convinced a rational fact-finder could have found
Finch guilty beyond a reasonable doubt. The fact that the defense challenged the
reliability and accuracy of the State's evidence, introducing the concept of margin of error
and prompting the officer's stubborn insistence that no Intoxilyzer error was possible,
made the case one for the jury's evaluation and decision. By granting the motion for
judgment of acquittal, the judge erred. The evidence was neither so weak nor so strong
that acquittal or conviction was assured as a matter of law. The jury should have been
permitted to discharge its duty.

In addition, although neither side makes a point of discussing it on this appeal, we
note that the district judge apparently relied in part on testimony he was familiar with
from another case. If so, this too was error. See K.S.A. 60-409(a), (b) (circumstances in
which judicial notice permitted limited); State v. McCray, 267 Kan. 339, Syl. ¶ 7, 979
P.2d 134 (1999) (K.S.A. 60-460(c)(2) permits use of testimony from former trial of same
action if declarant unavailable, adverse party had right, opportunity to adequately cross-
examine at former trial); Madden v. Stegman, 88 Kan. 29, 32, 127 P. 524 (1912) (former
testimony may be introduced as evidence in litigation between persons who were parties

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to earlier litigation in which former testimony given); see also West v. Reddick, Inc., 302
N.C. 201, 202-03, 274 S.E.2d 221 (1981) (court may take judicial notice of its own
records in another interrelated proceeding where parties same, issues same, interrelated
case referred to in case under consideration); Gardner v. Martin, 162 Tex. 156, 158, 345
S.W.2d 274 (1961) (trial court may take judicial notice of its own records in cause
involving same subject matter between same, or practically same, parties).

The State's appeal on the question reserved is sustained.

DAVIS, C. J., not participating.